James D. Branch, II v. Elizabeth Marlene Branch ( 2015 )

ACCEPTED
12-15-00120-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/3/2015 9:32:30 AM
Pam Estes
CLERK
FILED IN
12th COURT OF APPEALS
CASE NO. 12-15-00120-CV TYLER, TEXAS
11/3/2015 9:32:30 AM
PAM ESTES
IN THE TEXAS APPELLATE COURT 12 DISTRICT
th Clerk
SMITH COUNTY, TEXAS
JAMES D. BRANCH, II v. ELIZABETH MARLENE BRANCH
On Appeal from
ANDERSON COUNTY COURT AT LAW
Anderson County, Texas
(Trial Court No. 11821)
Honorable JEFF DORAN
BRIEF OF APPELLANT
MARK W. CARGILL
TBC# 00787201
701 N. Elm
Palestine, Texas 75801
903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
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PARTIES
JAMES D. BRANCH, II, APPELLANT
Mr. Lynn E. Markham
608 East Houston Ave.
PO Box 879
Crockett, Texas 75835
Mark W. Cargill
Attorney for Appellant
701 N. Elm
Palestine, Texas 75801
SBN: 00787201
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TABLE OF CONTENTS
Page
Table of Contents……………………………………………………………………………………….. 3
Index of Authorities………………………………………………………………………………….. 4
Statement of the Case…………………………………………..…………………………………... 6
Issues Presented: Issue Number One……………………………………………………… 6
Statement of Jurisdiction……………………………………………………………………….. 6
Statement of Facts …………………….…………………………………………………………... 6, 7
Summary of Argument……………………………………….………………………………….. 7
Argument ……………………………………………….………………………………………………… 7
Prayer………………………………………………………………………………………………………… 8
Certificate of Service…………………………………………………………………………………... 8
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INDEX OF AUTHORITIES
Statutes
Tx. Govt. Code Sec. 22.201 (m)
State Cases
Mosley v. Page, 822 S.W.2d 779, 786 (Tex. App. – Dallas 1990, no writ)
Waisath v. Locks’ Stores, Inc., 474 S.W.2d 444 (Tex. 1971)
Ligon v. E.F. Hutton and Co., 428 S.W.2d 434, (Tex. Civ. App. – Dallas, 1978,
writ ref’d n.r.e.)
Other Authorities
Restatement (second) of Torts, 22A
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CASE NO. 12-15-00120-CV
IN THE TEXAS APPELLATE COURT 12 DISTRICT
SMITH COUNTY, TEXAS
JAMES D. BRANCH, II V. ELIZABETH MARLENE BRANCH
On Appeal from
ANDERSON COUNTY COURT AT LAW
Anderson County, Texas
(Trial Court No. 11821)
Honorable JEFF DORAN
BRIEF OF APPELLANT
MARK W. CARGILL
TBC# 00787201
701 N. Elm
Palestine, Texas 75801
903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
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STATEMENT OF CASE
This is an appeal from a bench trial held on November 20, 2014, concerning
conversion of property.
Notice of appeal was timely filed. The clerk’s record and reporter’s record
were both filed. This brief has been filed within the requested time frame of this
court.
ISSUES PRESENTED
Issue No. One
The trial court wrongfully denied Plaintiff’s request for damages resulting
from conversion by defendant by not recognizing defendant’s duty as bailee of
plaintiff’s property.
STATEMENT OF JURISDICTION
This Court has jurisdiction under Tx. Govt. Code Section 22.201 (m), in that
the bench trial was held in the County Court at Law of Anderson County, Texas
which is in the Court’s appeals district.
STATEMENT OF FACTS
Plaintiff owned a safe which he had permission to store in a building owned
by Defendant. The building burned, but the safe remained on the slab of the
building. (RR Vol. 1, page 15, 34-36, 38). Plaintiff relied on Defendant’s assurance
the safe would be secure.
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Defendant gave permission for two unknown men to remove the safe from
the property because Defendant was told that Plaintiff had given the safe to them.
(RR Vol. 1, page 21, and pages 36-36). Plaintiff confronted Defendant immediately
upon observing the safe was missing and contacted law enforcement. (RR Vol. 1,
page 15-16). Defendant admitted she should have notified Plaintiff and had duty to
do so. (RR Vol. 1, pages 36-39).
SUMMARY OF ARGUMENT
Defendant became a bailee upon accepting the property of Plaintiff and
agreeing to allow it to stay on her property. Defendant had duty to reasonably keep
property secure.
ARGUMENT
Defendant claims she owed no duty to Plaintiff because she did not know the
contents of the safe entrusted her. (RR Vol. 1, page 39). Defendant’s duty is not
determined by her intent or knowledge. Restatement (second) of Torts, 22A,
Mosley v. Page, 822 S.W.2d 779, 786 (Tex. App. – Dallas 1990 no writ).
The fact that she did not know the contents of the safe, or its value, is not
relevant or material. Mosley v. Page ante
Further, Defendant claims that conversion did not exist because she received
no value from giving the safe to unknown persons is immaterial. (RR Vol. 1, page 38-
39). Waisath v. Locks’ Stores, Inc. 474 S.W.2d 444 (Tex. 1971), Ligon v. E.F.
Hutton and Co., 428 S.W.2d 434 (Tex. Civ. App. - Dallas, 1978, writ ref’d n.r.e.).
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PRAYER FOR RELIEF
For the reasons stated, JAMES D. BRANCH, II, appellant requests this Court to
overturn the Court’s verdict and order a new trial and that this Court grant such
other relief to which appellant may be justly entitled.
Respectfully submitted,
CARGILL & ASSOCIATES
BY: /s/Mark W. Cargill
Mark W. Cargill
SBN: 00787201
701 N. Elm
Palestine, Texas 75801
Telephone: 903/729-8011
Facsimile: 903/729-5112
cargillaw@earthlink.net
Attorney for Appellant
CERTIFICATE OF SERVICE
This is the certify that on November 2, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney’s Office, Anderson
County, and all other interested parties, by hand delivery, mail, and/or facsimile and
regular mail.
/s/ Mark W. Cargill
Mark W. Cargill
Word Count
On this 2nd day of November 2015, I, Mark W. Cargill, hereby certifies that this brief
has a word count of 816.
/s/ Mark W. Cargill
Mark W. Cargill
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